The injunction, granted late on Monday in Sydney, applies at least until a hearing resumes on Tuesday afternoon at 2.15pm.

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The asylum seekers are represented by Ron Merkel, QC, who argued to Justice Susan Crennan that the transfer was illegal because the asylum seekers had been deprived the ability to have their claims properly assessed.

But it was not clear whether the transfer has already taken place because Immigration Minister Scott Morrison has refused to comment and his lawyers told the court they had not received instructions.

A spokesman for the Minister said on Tuesday morning that ''the government notes the matter is before the Court and accordingly will be making no further comment''.

On Tuesday, Prime Minister Tony Abbott said that he could not comment on the High Court case but said he could assure Australians that "what we do is consistent with our legal obligations and safety at sea".

"The Labor Party and its activists, the Greens and their activists, they will try to disrupt the government's policies. They will try to do things that start the boats up again because that's in Labor's DNA but we promised that we would stop the boats," he told Channel Seven.

Mr Abbott took a swipe at the lawyer assisting Mr Merkel, George Newhouse, saying he was a former Labor candidate and said he was focused on ''stopping the boats''. He refused to comment on what was happening with the 153 asylum seekers.

Earlier on Monday, Mr Morrison confirmed 41 asylum seekers had been handed over to Sri Lanka's military after being processed at sea but he refused to discuss the whereabouts of the 153 asylum seekers on another boat.

Sources said lawyers were representing the asylum seekers through their families and they have not been in touch with them since contact was lost more than a week ago.

The United Nations refugee agency has expressed ''deep concern'' about the return of the asylum seekers to Sri Lanka and the fate of the 153 who are subject to the High Court injunction.

In a statement issued overnight in Geneva, the agency repeated its concerns about the ''enhanced screening'' procedures applied to the protection claims of those intercepted on the two boats.

''UNHCR's experience over the years with shipboard processing has generally not been positive. Such an environment would rarely afford an appropriate venue for a fair procedure,'' the statement said.

The surprise court action followed an emotional plea from the father of a three-year-old girl on board the boat for Mr Morrison to reveal the fate of the passengers.

"I am desperate to know where my family is," the man said.

He claimed all on board would face persecution if they were sent to Sri Lanka. "I can't function at all not knowing,'' he said.

The legal move came as the president of the Australian Human Rights Commission, Gillian Triggs, announced plans to investigate the treatment of children on the boat if they were transferred to an Australian vessel before being returned to Sri Lanka. Thirty-seven children are believed to have been on board the boat, which has not been heard from since Saturday, June 28, and left Pondicherry in southern India, on June 13.

Professor Triggs expressed alarm that the "enhanced screening" process used to reject the claims of the boat of 41 Sri Lankans appeared in breach of international law.

A Sri Lankan police spokesman has reportedly said the group had been handed over to the police and would face court in the port of Galle charged under the Immigrants and Emigrants Act.

Professor Triggs' concerns were echoed by more than 50 legal scholars from 17 Australian universities, who released a statement on Monday declaring Australia's acions in clear violation of international law.

''We are profoundly concerned by reports that asylum seekers are being subjected to rapid and inadequate screening interviews at sea and returned to Sri Lanka. This raises a real risk of refoulement in breach of Australia's obligations under international . . . law,'' their statement said.

A defiant Mr Morrison maintained the enhanced screening process complied with Australia’s international obligations and was the same process used by the former Labor government.

Mr Morrison confirmed early yesterday that the 41 had been subjected to enhanced screening before being handed over to Sri Lankan authorities, but refused to comment on the fate of the second boat. He said that in one case it was recommended that ‘‘further determination’’ be made, but the Sinhalese man concerned requested to depart with the others.

Asked by Sydney broadcaster Ray Hadley if the 153 on the other boat would not be coming to Australia, he replied: “No one is coming to Australia Ray. You can certainly deduce that.”

Labor immigration spokesman Richard Marles maintained that enhanced screening process employed by the former government would have involved the asylum seekers’ claims being assessed on Christmas Island.

“Labor has concerns about the integrity of this new method of processing people at sea en masse and how this complies with Australia’s international obligations under relevant conventions,” Mr Marles said.

The secrecy surrounding the interception of the two boats will be debated by the new Senate on Tuesday, with the Greens moving a motion on Wednesday demanding more information and calling for an end to "current screening and transfer practices".

Greens immigration spokeswoman Senator Hanson-Young said: ''The government think they are above the law and they are holding the public in contempt. The court and the parliament now need to bring them into line.

''They are playing with people's lives - it is only right that the court and the parliament force the government to explain what is really going on.''

Two crossbench senators have signalled that they will not support a motion condemning the government's policies.

"We have two options when it comes to asylum seekers," Family First's Bob Day told Fairfax Media. "You have a bad option and a worse option. Go for the bad option, there are no good options."

Liberal Democrat David Leyonhjelm said he would not support any motion criticising the government for individual actions, labelling it "partisan politics" that he did not want to participate in. But he would support a motion for more information and transparency.

"I will support attempts to improve and increase transparency. I think that's a good principle to pursue," he said.

Senator Leyonhjelm said he did not like the government's model because it gave people hope that they could "come in the backdoor".

Palmer United Party leader Clive Palmer said on Monday that if people seeking refuge had been returned by force to a country they were fleeing from it would be a breach of the refugee convention.

Refugee lawyer David Manne said it was difficult to track the fate of returned asylum seekers.

''This is part of the problem that we've seen in Sri Lanka, with people being essentially summarily expelled there without proper due process,'' he said.

Mr Newhouse on Tuesday said Mr Abbott's comments were an attempt to ''smear him'' and said while he had previously stood for the Labor Party, he was no longer involved in politics.

''He (Mr Abbott) can say what he wants about me and my involvement,'' Mr Newhouse told ABC radio in Melbourne.

''I'm also a member of the Jewish community and I remember the Jewish poeple being handed back to the Nazis.

''This has nothing to do with the Labor Party.

''It is not about me but it is about the reality of sending people back to harm,'' he said.

Mr Newhouse said Sri Lanka was a ''despotic regime'' and the Australian government could not guarantee the asylum seekers safety, adding he would not send a ''dog'' to a Sri Lankan prison.

264 comments

What a bloody mess, just goes to show that when you vote for arrogant amateurs you end up with a clown show!

Commenter

Pieron

Date and time

July 08, 2014, 7:27AM

oh dear Snort Moribund -checks and balances - the check has bounced and we now have more balance - thank god for the upper house and the judiciary

Commenter

rod steiger

Location

toukley

Date and time

July 08, 2014, 8:32AM

I would have thought the fact that advocate lawyers can successively take out an injunction against a government in a nation's High Court would indicate that the rule of law in Australian is fully functioning not the reverse.

Commenter

SteveH.

Location

always ready to jump in if you're not

Date and time

July 08, 2014, 8:37AM

"The asylum seekers are represented by Ron Merkel, QC, who argued to Justice Susan Crennan that the transfer was illegal because the asylum seekers had been deprived the ability to have their claims properly assessed."

Oh yes, I can see them having to explain to their dinner party guests how they could, in good conscience, support an at sea transfer.

The LNP is screwed on this one...

Commenter

Malik the magic sheep

Location

Perth

Date and time

July 08, 2014, 9:08AM

SteveH, where's the boat? We don't even know where it is - if the Government has already handed these people back to the authorities of the regime they fled the rule of law has hardly been upheld has it?

Commenter

jofek

Date and time

July 08, 2014, 9:10AM

@SteveH - if you read closely, the posters were not criticising the Australian legal system - only the Australian political system (the Abbott government - in case you were in any doubt).

Commenter

Jump

Date and time

July 08, 2014, 9:10AM

SteveH, the fact that advocate lawyers have to step in highlights that this amateur government have gone too far and have no idea what they are doing. That is the worrying factor here the people steering this ship are clueless!

Commenter

Pieron

Date and time

July 08, 2014, 9:18AM

Wait a minute. These boats now have Australian legal representation before they even get here?

I think this whole boat scam has jumped the shark. Please, if you can arrange legal representation before leaving your destination you can also learn that Australia does not accept maritime arrivals. These are economic migrants trying chance their luck, fully egged on (& possibly funded) by the partisan left wing luvvies of Australia.

Commenter

Philly Slim

Location

Paddington

Date and time

July 08, 2014, 9:20AM

what I found amusing was Sir Tony One Term saying the case was brought by "a former Labor candidate", as if human rights claims are a Labor conspiracy. George Newhouse has been a champion of human rights for many years. This action is George merely following his sense of what is right, a sense Cardinal Abbott seems to have shed a looooong time ago - "We seek the expedient, not the equitable, or even the efficient"

Commenter

rod steiger

Location

toukley

Date and time

July 08, 2014, 9:23AM

How many of us can afford QC's? How many of us can access the High Court? The whole thing is skewed towards non-tax-paying foreigners. All we, taxpayers, do is pay the bill. And QCs are not cheap.

7 Jul
Australian international law experts have uniformly condemned Australia’s return of asylum seekers to Sri Lanka as a violation of international law that risks sending vulnerable people back to persecution and torture.

7 Jul
The leadership of Australia’s mainstream churches may sometimes seem slightly silent on the issue of boat people but a Gosford Anglican priest is at the forefront of a grass roots movement impatient with waiting for religious hierarchies to get their acts together.